Plaintiff Elizabeth de Chanval Pellier ("Pellier") brings this action against British Airways ("BA"), and individual BA employees Irving Rudowitz ("Rudowitz"), Rosemary Rogers ("Rogers"), Dan Driscoll ("Driscoll") and Doug Hutcheson ("Hutcheson") (collectively, "defendants"). Pellier brings claims against BA for acts of sex discrimination, harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). See 42 U.S.C. § 2000e. Pellier also brings claims against all defendants for violations of New York State and City civil rights laws, see N.Y. Exec. § 296 (McKinney 2005) ("NYSHRL"); New York, N.Y. Admin. Code tit. 8, ch. 1, § 8-107 (West 2004) ("NYCHRL"), for violations of New York State's surreptitious viewing law, see N.Y. Gen. Bus. Law § 395 (McKinney 2005) ("§ 395"); for common-law intentional infliction of emotional distress; and for "gross, willful and wanton, malice and gross carelessness, recklessness and depraved indifference." All defendants have moved for summary judgment on all claims except the last.*fn1

Background

Pellier, a BA employee for nearly 30 years, was promoted to the position of Duty Maintenance Manager ("DMM") in BA's Engineering Department ("Engineering") at John F. Kennedy ("JFK") International Airport in October 1997, a position she describes as "highly regarded [and] prestigious." Pl's Mem. of Law in Opp. to Defs' Mot. for Summ. J. ("Pl's Opp. Mem.") at 6; see Defs' Local Rule 56.1 Statement of Material Facts ("Defs' 56.1 Stmt.") ¶¶ 7-8.*fn2 Pellier alleges that, during her tenure in Engineering, other BA employees engaged in persistent and abusive inappropriate conduct of a sexual nature. See Pl's 56.1 Stmt. ¶ 56. Thereafter, Pellier requested a transfer out of Engineering and, after turning down several other positions and an early retirement package, accepted a "clerical" position within BA's World Cargo Department ("WCD") in 2002. See Defs' App., Ex. Z; Defs' 56.1 Stmt. ¶ 24; Aff. of Pl. in Opp. to Mot. for Summ. J. ("Pellier Aff.") ¶ 45. Pellier's claims arise from the conduct of her co-workers and subordinates during her tenure in Engineering, and from the circumstances of her subsequent transfer.

The parties' submissions suggest an essentially three-tiered employment structure at BA's Engineering facility at JFK Airport. See Defs' 56.1 Stmt. ¶ 6. The lowest tier was comprised of various union positions with limited or no supervisory responsibility. See id. The middle tier was comprised of DMMs, who were BA management employees with certain supervisory authority over the subordinate union staff. See id. ¶ 6. In turn, the DMMs reported to a Station Maintenance Manager ("SMM"), the apparent head of the department, with authority over all its employees. See id. ¶ 5.*fn3 During the relevant period, there were five DMMs and approximately forty-six union employees in Engineering. See id. ¶ 11.

Defendant Rudowitz was BA's Senior Vice President of People and Organizational Delivery for North America, with apparent authority over all the individual parties in this litigation. See Pl's 56.1 Stmt. ¶¶ 15-16; Defs' Reply 56.1 ¶¶ 15-16. Defendant Driscoll was the Director of Labor and Employee Relations and had authority over all individuals in that department. See Pl's 56.1 Stmt. ¶ 21; Defs' Reply 56.1 ¶ 21. Defendant Rogers, BA's Director of Human Resources, USA, was a "human resources generalist with responsibilities for the day-today operation of [the Human Resources] department." See Defs' 56.1 Stmt. ¶ 3; Pl's 56.1 Stmt. ¶ 28.

Pellier alleges that at some point after she began working as an Engineering DMM, various Engineering employees engaged in inappropriate conduct of a sexual nature. See generally Pl's App. Ex. O-FFF; Pl's 56.1 Stmt. ¶ 56. This included: posting and otherwise leaving in plain view pornographic material, some of which depicted or was directed specifically at Pellier; using BA computers to access pornographic material on the internet; downloading such material onto communal BA computers where others could view it; and viewing pornographic video cassettes and cable programs on a television located in a communal area. Id. Though the parties largely agree that such acts occurred, see generally Defs' Reply 56.1 ¶ 56, they present conflicting accounts of who did what in response.

Pellier alleges that she complained on several occasions to Rudowitz, Rogers and Hutcheson and that they failed to take appropriate investigative or remedial steps. See Pl's Opp. Mem. at 5, 9; see, e.g., Pl's 56.1 Stmt. ¶¶ 56(a)-(f),(h),(k),(m)-(n),(t),(dd). Because of these failures, Pellier asserts that she was forced to file a complaint with the Equal Employment Opportunity Commission ("EEOC") and that, thereafter, she was subjected to further inappropriate conduct in retaliation. See id. ¶¶ 56(w),(cc)-(dd),(ff),(hh)-(ii),(qq). According to Pellier, BA continued to ineffectively respond to her complaints after she filed with the EEOC. See id. ¶¶ 56(jj),(qq),(ww)-(aaa). Pellier alleges that one response in particular, whereby several surveillance cameras were installed throughout the Engineering facility (including in Pellier's shared office), was, in fact, "an orchestrated way to capture her in an indiscreet moment." Pl's Opp. Mem. at 24; see Pl's 56.1 Stmt. ¶¶ 56(kkk), (nnn). Pellier contends that she was ultimately forced to accept a position involving "significantly diminished material responsibilities" in order to escape conditions in Engineering which she describes as "intolerable." See Pl's 56.1 Stmt. ¶¶ 56(uuu); Pl's Opp. Mem. at 7; Dep. of Elizabeth de Chanval Pellier ("Pellier Dep.") at 175.

For their part, defendants portray BA's response in a substantially different light. See generally Defs' Mem. at 1-3. Specifically, defendants claim that they timely and adequately responded to all Pellier's complaints. See Defs' Mem. at 2, 19-21; Defs' 56.1 Stmt. ¶¶ 73-74, 79-82, 90, 93, 111-13, 119-20, 133, 141-46. Moreover, far from being offended, defendants suggest that Pellier in fact approved of and engaged in the inappropriate conduct while she worked in Engineering. See Defs' Mem. at 13; Defs' 56.1 Stmt. ¶¶ 151-53, 167. They point out that Pellier never complained until several years after she alleges the inappropriate conduct began, and then complained for the first time only after Hutcheson recommended a change in BA policy that would have imposed longer shifts on the JFK DMMs. See Defs' Mem. at 15; Defs' 56.1 Stmt. ¶¶ 39-40.

Specifically, soon after Hutcheson arrived in Engineering, he recommended changing the BA policy regarding the shift requirements for DMMs. See Defs' 56.1 Stmt. ¶ 39. At his recommendation, DMMs were ultimately required to work four twelve-hour shifts per week, instead of five eight-hour shifts per week. Id. In light of this, defendants contend that Pellier's complaints were not motivated by her offense at the inappropriate conduct, but rather manifest an attempt to avoid the shift change, which Pellier allegedly thought would adversely affect her health and the health of her pets. See Defs' Mem. at 15; Defs' 56.1 Stmt. ¶¶ 42, 44-47, 52-54, 58-60. Additional relevant facts (and factual disputes) are discussed below.

Discussion

To prevail at summary judgment, the moving party must show that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Only disputes about material facts that might affect the outcome of the suit will properly preclude summary judgment. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The moving party bears the burden of establishing that it is entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, where a motion for summary judgment is predicated upon the absence of proof of an essential element of a particular claim for relief, the nonmoving party must produce evidence such that a rational trier of fact could find in its favor on that element. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

(1)

Title VII Claims

a. Sex Discrimination

Pellier claims that BA discriminated against her because of her sex by transferring her to the less prestigious WCD position. This claim is governed by the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff must first establish a prima facie case of discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993). To make out a prima facie case of illegal discrimination, a plaintiff must show that (1) she belongs to a protected class, (2) she performed her job satisfactorily, (3) she experienced an adverse employment action, and (4) the action occurred under circumstances giving rise to an inference of discrimination. See McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). If a plaintiff establishes a prima facie case, the burden shifts to the defendant to present a legitimate, nondiscriminatory reason for the employment decision in question. See St. Mary's, 509 U.S. at 507. If the defendant presents such a reason, the presumption of discrimination "'completely drops out of the picture,'" James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (quoting St. Mary's, 509 U.S. at 510-11), and the burden shifts back to the plaintiff to demonstrate that the proffered reason is pretext for a true, discriminatory reason. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Despite the "division of intermediate evidentiary burdens" announced in McDonnell, the Supreme Court has specifically noted that "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."

Id. at 253.

Assuming arguendo that Pellier can establish the first, second and fourth elements of her prima facie case, BA argues that Pellier has not experienced an adverse employment action and thus cannot meet her initial burden under McDonnell. For her part, Pellier argues that her transfer to the less prestigious WCD position was an adverse employment action.

It is clear that Pellier's transfer cannot serve as an adverse employment action because she voluntarily requested and accepted it. The Second Circuit has adopted the proposition that a voluntary transfer can, under certain circumstances, serve as an adverse employment action. See Richardson v. New York State Dep't of Correctional Services, 180 F.3d 426, 444 n.4 (2d Cir. 1999) (finding sufficient evidence to support a conclusion that a transfer requested by the plaintiff constituted an adverse employment action where there was evidence that another, more desirable, lateral job opening for which the plaintiff was qualified may have existed but was not offered to the plaintiff).*fn4 However, this circuit has held that a voluntary resignation is not an adverse employment action unless the employee was constructively discharged. Cf. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (treating resignation as employer-initiated discharge for the purposes of discriminatory discharge claim where supervisor told plaintiff he "would be fired at the end of the 90-day probationary period no matter what he did to improve his allegedly deficient performance"). Under the constructive discharge doctrine, a voluntary resignation will not preclude a finding of an adverse employment action if the plaintiff can show that "the employer . . . deliberately [made] working conditions so intolerable that the employee [was] forced into an involuntary resignation." Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (quoting Young v. Southwestern Savings and Loan Assn., 509 F.2d 140, 144 (5th Cir. 1975) (internal quotations omitted)). In such circumstances, a plaintiff's resignation is not voluntary at all, but rather is the result of the employer's illegal discrimination. See Terry v. Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003). Indeed, the Supreme Court has held that an employer may be liable under Title VII where an allegedly hostile work environment forces an employee to resign. See Pennsylvania State Police v. Suders, 542 U.S. 129, 143 (2004) ("Title VII encompasses employer liability for a constructive discharge.").

Though the Second Circuit has not explicitly applied the doctrine of constructive discharge to situations where an employee accepts a transfer offer, other circuits have so held. See, e.g., Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876-78 (7th Cir. 1999) (holding that voluntary transfer was not an adverse employment action where the work environment was not intolerable and assessing voluntariness under "constructive discharge" analysis); Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707, 717 (8th Cir. 2003) (recognizing constructive demotion in ADA context as adverse employment action and employing constructive discharge analysis under which a plaintiff "must show both that he found the environment to be abusive and that an objective person in his position would have felt that he had to demote himself because of his discriminatory work conditions"). But compare Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999) (reversing grant of summary judgment where "[t]he jury could have found that the transfer, albeit at Sharp's request, was a constructive demotion, the involuntary result of conditions so intolerable that a reasonable person would feel compelled to leave").

As there appears to be little doctrinal distinction between claims of forced resignation and claims of forced transfer, the principle outlined in Richardson and by other circuits is persuasive. Pellier's voluntary transfer is not an adverse employment action unless she can establish that BA intentionally created conditions "'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled'" to accept the transfer. See Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003) (quoting Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)); see also Thomas v. Bergdorf Goodman, Inc., 03-CV-3066, 2004 WL 2979960, at *9 n.5 (S.D.N.Y. Dec. 22, 2004) (observing that although Suders recognized constructive discharge as a basis for a Title VII claim, it did not dispense with the ...

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